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EXHIBIT 10.34
When Recorded, Return To:
THE FROST NATIONAL BANK
X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Loan No. _________________
Loan Documentation Department, RB-2
LEASEHOLD DEED OF TRUST, ASSIGNMENT,
SECURITY AGREEMENT AND FINANCING STATEMENT
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
THIS LEASEHOLD DEED OF TRUST, ASSIGNMENT, SECURITY AGREEMENT AND
FINANCING STATEMENT (this "MORTGAGE") dated as of September 15, 1997, is
executed and delivered by Grantor for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by Grantor.
ARTICLE 1
CERTAIN DEFINITIONS, GRANTING CLAUSES, SECURED INDEBTEDNESS
Section 1.1. CERTAIN DEFINITIONS AND REFERENCE TERMS. In addition
to the other terms defined herein, each of the following terms shall have the
meaning assigned to it:
"AGENT": The Frost National Bank, a national banking association, in
its capacity as agent for the Banks, and its successors and assigns.
"BANKS": Collectively, each of the financial institutions listed on
the signature pages to the Credit Agreement, together with each other person or
entity becoming a Bank pursuant thereto from time to time, and their respective
successors and assigns.
"BORROWER": Grantor.
"CREDIT AGREEMENT": That certain Credit Agreement dated as of the
date hereof, executed by and among Borrower, The Frost National Bank, as Agent
and as Bank, and certain Banks named therein, as amended, supplemented,
modified, restated or extended from time to time.
"GRANTOR": Packaged Ice, Inc., a Texas corporation, and its
successors and assigns.
"PROMISSORY NOTES": Each Revolving Credit Note (as such term is
defined in the Credit Agreement) executed by Borrower, and payable to the order
of any Bank, evidencing loans advanced to Borrower under the Credit Agreement,
in an aggregate principal face amount of $20,000,000, bearing interest as
therein provided, containing a provision for the payment of a reasonable
additional amount as attorneys' fees, and finally maturing on April 15, 2003,
together with any renewals, increases, extensions, restatements, or
modifications thereof.
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"TRUSTEE": Xxxxx X. Xxxxx, of Bexar County, Texas, or any successor
or substitute appointed and designated as herein provided from time to time
acting hereunder.
Section 1.2. MORTGAGED PROPERTY. Grantor does hereby grant, bargain,
sell, convey, transfer, assign and set over to Trustee the following: (a)
Grantor's leasehold estate in the real estate (herein called the "LAND")
described in EXHIBIT A which is attached hereto and incorporated herein by
reference, and (i) all improvements now or hereafter situated or to be situated
on the Land (herein together called the "IMPROVEMENTS"); and (ii) all right,
title and interest of Grantor in and to (1) all streets, roads, alleys,
easements, rights-of-way, licenses, rights of ingress and egress, vehicle
parking rights and public places, existing or proposed, abutting, adjacent,
used in connection with or pertaining, to the Land or the Improvements; (2) any
strips or gores between the Land and abutting or adjacent properties; and (3)
all water and water rights, timber, crops and mineral interests on or
pertaining to the Land or the Improvements (the Land, Improvements and other
rights, titles and interests referred to in this clause (a) being herein
sometimes collectively called the "PREMISES"); (b) all fixtures, equipment,
systems, machinery, furniture, furnishings, appliances, inventory, goods,
building and construction materials, supplies, and articles of personal
property, of every kind and character, now owned or hereafter acquired by
Grantor, which are now or hereafter attached to or situated in, on or about the
Land or the Improvements, or used in or necessary to the complete and proper
planning, development, use, occupancy or operation thereof, or acquired
(whether delivered to the Land or stored elsewhere) for use or installation in
or on the Land or the Improvements, and all renewals and replacements of,
substitutions for and additions to the foregoing (the properties referred to in
this clause (b) being herein sometimes collectively called the "ACCESSORIES,"
all of which are hereby declared to be permanent accessions to the Land); (c)
all (i) plans and specifications for the Improvements; (ii) Grantor's rights,
but not liability for any breach by Grantor, under all commitments (including
any commitment for financing to pay any of the secured indebtedness, as defined
below), insurance policies and other contracts and general intangibles
(including, but not limited to trademarks, trade names and symbols) related to
the Premises or the Accessories or the operation thereof; (iii) deposits
(including, but not limited to Grantor's rights in tenants' security deposits,
deposits with respect to utility services to the Premises, and any deposits or
reserves hereunder or under any other Loan Document for taxes, insurance or
otherwise), money, accounts, instruments, documents, notes and chattel paper
arising from or by virtue of any transactions related to the Premises or the
Accessories (without derogation of ARTICLE 3 hereof); (iv) permits, licenses,
franchises, certificates, development rights, commitments and rights for
utilities, and other rights and privileges obtained in connection with the
Premises or the Accessories; (v) leases, rents, royalties, bonuses, issues,
profits, revenues and other benefits of the Premises and the Accessories
(without derogation of ARTICLE 3 hereof); (vi) oil, gas and other hydrocarbons
and other minerals produced from or allocated to the Land and all products
processed or obtained therefrom, and the proceeds thereof; and (vii)
engineering, accounting, title, legal, and other technical or business data
concerning the Mortgaged Property which are in the possession of Grantor or in
which Grantor can otherwise grant a security interest; and (d) all (i) proceeds
of or arising from the properties, rights, titles and interests referred to
above in this SECTION 1.2, including, but not limited to proceeds of any sale,
lease or other disposition thereof, proceeds of each policy of insurance
relating thereto (including premium refunds), proceeds of the taking thereof or
of any rights appurtenant thereto, including change of grade of streets, curb
cuts or other rights of access, by eminent domain or transfer in lieu thereof
for public or quasi-public use under any law, and proceeds arising out of any
damage thereto; and (ii) other interests of every kind and character which
Grantor now has or hereafter acquires in, to or for the benefit of the
properties, rights, titles and interests referred to above in this SECTION 1.2
and all property used or useful in connection therewith, including, but not
limited to rights of ingress and egress and remainders, reversions and
reversionary rights or interests; and if the estate of Grantor in any of the
property referred to above in this SECTION 1.2 is a leasehold estate, this
conveyance shall include, and the lien and security interest created
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hereby shall encumber and extend to, all other or additional title, estates,
interests or rights which are now owned or may hereafter be acquired by Grantor
in or to the property demised under the lease creating the leasehold estate; TO
HAVE AND TO HOLD the foregoing rights, interests and properties, and all
rights, estates, powers and privileges appurtenant thereto (herein collectively
called the "MORTGAGED PROPERTY"), unto Trustee, and to his successors or
substitutes in this trust, and to his or their successors and assigns, in
trust, however, upon the terms, provisions and conditions herein set forth.
Section 1.3. SECURITY INTEREST. Grantor hereby grants to Agent, as
agent for the Banks, a security interest in all of the Mortgaged Property which
constitutes personal property or fixtures (herein sometimes collectively called
the "COLLATERAL"). In addition to its rights hereunder or otherwise, Agent
shall have all of the rights of a secured party under the Texas Business and
Commerce Code, or under the Uniform Commercial Code in force in any other state
to the extent the same is applicable law.
Section 1.4. NOTES, LOAN DOCUMENTS, OTHER OBLIGATIONS. This Mortgage
is made to secure and enforce the payment and performance of the following
promissory notes, obligations, indebtedness and liabilities and all renewals,
extensions, supplements, increases, and modifications thereof in whole or in
part from time to time:
(i) the Promissory Notes and all other notes given in substitution
therefor or in modification, supplement, increase, renewal or extension
thereof, in whole or in part (such notes, as from time to time renewed,
extended, supplemented, increased, or modified and all other notes given in
substitution therefor, or in modification, renewal or extension thereof, in
whole or in part, being hereinafter collectively called the "NOTES," and
individually a "NOTE," and Agent and the other Banks, or the subsequent holders
at the time in question of the Notes or any of the secured indebtedness, as
hereinafter defined, being collectively herein called "HOLDERS" and
individually a "HOLDER"); (ii) all indebtedness and other obligations owed by
the Borrower to any Holder now or hereafter incurred or arising pursuant to or
permitted by the provisions of the Notes, this Mortgage, or any other document
now or hereafter evidencing, governing, guaranteeing, securing, or otherwise
executed in connection with the loans evidenced by the Notes, including, but
not limited to any loan or credit agreement, tri-party financing agreement or
other agreement between the Borrower and Holders, or among the Borrower,
Holders and any other party or parties, pertaining to the repayment or use of
the proceeds of the loan evidenced by the Notes (the Credit Agreement, the
Notes, this Mortgage, any other "LOAN PAPERS" (as such term is defined in the
Credit Agreement), and such other documents, as they or any of them may have
been or may be from time to time renewed, extended, supplemented, increased or
modified, being herein sometimes collectively called the "LOAN DOCUMENTS");
(iii) all other loans and future advances made by any Holder to the Borrower
and all other debts, obligations and liabilities of Grantor of every kind and
character now or hereafter existing in favor of any Holder, and arising under
the Credit Agreement, any of the Notes, or any of the other Loan Documents, and
whether direct or indirect, primary or secondary, joint or several, fixed or
contingent, secured or unsecured, and whether originally payable to such Holder
or to a third party and subsequently acquired by such Holder, it being
contemplated that Grantor may hereafter become indebted to one or more Holders
for such other debts, obligations and liabilities arising under the Credit
Agreement, any of the Notes, or any of the other Loan Documents; provided,
however, and notwithstanding the foregoing provisions of this clause (iii),
this Mortgage shall not secure any such other loan, advance, debt, obligation
or liability with respect to which any such Holder is by applicable law
prohibited from obtaining a lien on real estate nor shall this clause (iii)
operate or be effective to constitute or require any assumption or payment by
any person, in any way, of any debt of any other person to the extent that the
same would violate or exceed the limit provided in any applicable usury or
other law.
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The indebtedness referred to in this SECTION 1.4 is hereinafter
sometimes referred to as the "SECURED INDEBTEDNESS" or the "INDEBTEDNESS
SECURED HEREBY."
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Grantor represents, warrants, and covenants as follows:
(a) PAYMENT AND PERFORMANCE. Grantor will, and will cause the
Borrower to, make due and punctual payment of the secured indebtedness.
Grantor will, and will cause the Borrower to, timely and properly perform and
comply with all of the covenants, agreements, and conditions imposed upon them
by this Mortgage and the other Loan Documents and will not permit a default to
occur hereunder or thereunder which shall remain uncured. Time shall be of the
essence in this Mortgage.
(b) TITLE AND PERMITTED ENCUMBRANCES. Grantor has in Grantor's
own right, and Grantor covenants to maintain, lawful, good and indefeasible
title to the Mortgaged Property, free and clear of all liens, charges, claims,
security interests, and encumbrances except for (i) any and all matters of
record as of the date hereof and disclosed to Agent only to the extent the same
are valid and subsisting and affect the Mortgaged Property, (ii) the liens and
security interests evidenced by this Mortgage, (iii) statutory liens for ad
valorem taxes and standby fees on the Mortgaged Property which are not yet
delinquent, and (iv) other liens and security interests (if any) in favor of
any Bank (the matters described in the foregoing clauses (i), (ii), (iii) and
(iv) being herein called the "PERMITTED ENCUMBRANCES"). Grantor, and Grantor's
successors and assigns, will warrant and forever defend title to the Mortgaged
Property, subject as aforesaid to Trustee and his successors or substitutes and
assigns, against the claims and demands of all persons claiming or to claim the
same or any part thereof. Grantor will punctually pay, perform, observe and
keep all covenants, obligations and conditions in or pursuant to any Permitted
Encumbrance and will not modify or permit modification of any Permitted
Encumbrance without the prior written consent of Agent. Inclusion of any
matter as a Permitted Encumbrance does not constitute approval or waiver by
Agent of any existing or future violation or other breach thereof by Grantor,
by the Mortgaged Property or otherwise. No part of the Mortgaged Property
constitutes all or any part of the homestead of Grantor. If any right or
interest of Agent or any Bank in the Mortgaged Property or any part thereof
shall be endangered or questioned or shall be attacked directly or indirectly,
Trustee and Agent, or either of them (whether or not named as parties to legal
proceedings with respect thereto), are hereby authorized and empowered to take
such reasonable steps as in their discretion may be proper for the defense of
any such legal proceedings or the protection of such right or interest of Agent
or any Bank, including, but not limited to the employment of independent
counsel, the prosecution or defense of litigation, and the compromise or
discharge of adverse claims. All reasonable expenditures so made of every kind
and character shall be a demand obligation (which obligation Grantor hereby
promises to pay) owing by Grantor to Agent or Trustee (as the case may be), and
the party (Agent or Trustee, as the case may be) making such expenditures shall
be subrogated to all rights of the person receiving such payment.
(c) TAXES AND OTHER IMPOSITIONS. Grantor will pay, or cause to be
paid, all taxes, assessments and other charges or levies imposed upon or
against or with respect to the Mortgaged Property or the ownership, use,
occupancy or enjoyment of any portion thereof, or any utility service thereto,
as the same become due and payable, including, but not limited to all ad
valorem taxes assessed against the Mortgaged Property or any part thereof,
except for any such taxes or charges being contested in good faith and by
proper proceedings for which adequate reserves in accordance with generally
accepted accounting principles have
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been taken, and shall deliver promptly to Agent such evidence of the payment
thereof as Agent may reasonably require.
(d) INSURANCE. Grantor shall obtain and maintain at Grantor's
sole expense: (1) all-risk insurance with respect to all insurable Mortgaged
Property, against loss or damage by fire, lightning, windstorm, explosion,
hail, tornado and such hazards as are presently included in so-called
"all-risk" coverage and against such other insurable hazards as Agent may
require, in an amount not less than 100% of the full replacement cost,
including the cost of debris removal, without deduction for depreciation and
sufficient to prevent Grantor and Agent from becoming a coinsurer, such
insurance to be in Builder's Risk (non-reporting) form during and with respect
to any construction on the Premises; (23) if and to the extent any portion of
the Premises is in a special flood hazard area, a flood insurance policy in an
amount equal to the lesser of the principal face amount of the Notes or the
maximum amount available; (3) commercial general public liability insurance, on
an "occurrence" basis, for the benefit of Grantor and Agent as named insureds;
(4) statutory workers' compensation insurance with respect to any work on or
about the Premises; and (5) such other insurance on the Mortgaged Property as
may from time to time be reasonably required by Agent (including, but not
limited to business interruption insurance, boiler and machinery insurance,
earthquake insurance, and war risk insurance) and against other insurable
hazards or casualties which at the time are commonly insured against in the
case of premises similarly situated, due regard being given to the height,
type, construction, location, use and occupancy of buildings and improvements.
All insurance policies shall be issued and maintained by insurers, in amounts,
with deductibles, and in form satisfactory to Agent, and shall require not less
than thirty (30) days' prior written notice to Agent of any cancellation or
change of coverage. All insurance policies maintained, or caused to be
maintained, by Grantor with respect to the Mortgaged Property, except for
public liability insurance, shall provide that each such policy shall be
primary without right of contribution from any other insurance that may be
carried by Grantor or Agent and that all of the provisions thereof, except the
limits of liability, shall operate in the same manner as if there were a
separate policy covering each insured. If any insurer which has issued a
policy of title, hazard, liability or other insurance required pursuant to this
Mortgage or any other Loan Document becomes insolvent or the subject of any
bankruptcy, receivership or similar proceeding or if in the Agent's reasonable
opinion the financial responsibility of such insurer is or becomes inadequate,
Grantor shall, in each instance promptly upon the request of Agent and at
Grantor's expense, obtain and deliver to Agent a like policy (or, if and to the
extent permitted by Agent, a certificate of insurance) issued by another
insurer, which insurer and policy meet the requirements of this Mortgage or
such other Loan Document, as the case may be. Without limiting the discretion
of Agent with respect to required endorsements to insurance policies, all such
policies for loss of or damage to the Mortgaged Property shall contain a
standard mortgage clause (without contribution) naming Agent, as agent for the
Banks, as mortgagee with loss proceeds payable to Agent notwithstanding (i) any
act, failure to act or negligence of or violation of any warranty, declaration
or condition contained in any such policy by any named insured; (ii) the
occupation or use of the Mortgaged Property for purposes more hazardous than
permitted by the terms of any such policy; (iii) any foreclosure or other
action by Agent under the Loan Documents; or (iv) any change in title to or
ownership of the Mortgaged Property or any portion thereof, such proceeds to be
held for application as provided in the Loan Documents. The originals of each
initial insurance policy (or to the extent permitted by Agent, a copy of the
original policy and a satisfactory certificate of insurance) shall be delivered
to Agent at the time of execution of this Mortgage, with premiums fully paid,
and each renewal or substitute policy (or certificate) shall be delivered to
Agent, with premiums fully paid, at least ten (10) days before the termination
of the policy it renews or replaces. Grantor shall pay all premiums on
policies required hereunder as they become due and payable and promptly deliver
to Agent evidence satisfactory to Agent of the timely payment thereof. If any
loss occurs at any time when Grantor has failed to perform Grantor's covenants
and agreements in this paragraph, Agent shall nevertheless be entitled to the
benefit of all insurance covering the loss and held by or
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for Grantor, to the same extent as if it had been made payable to Agent. Upon
any foreclosure hereof or transfer of title to the Mortgaged Property in
extinguishment of the whole or any part of the secured indebtedness, all of
Grantor's right, title and interest in and to the insurance policies referred
to in this Section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such
transferee, to the extent permissible under such policies. Agent shall have
the right (but not the obligation) to make proof of loss for, settle and adjust
any claim under, and receive the proceeds of, all insurance for loss of or
damage to the Mortgaged Property, and the expenses incurred by Agent in the
adjustment and collection of insurance proceeds shall be a part of the secured
indebtedness and shall be due and payable to Agent on demand. Agent shall not
be, under any circumstances, liable or responsible for the obtaining,
maintaining or adequacy of any insurance or for failure to collect or exercise
diligence in the collection of any of such proceeds or for failure to see to
the proper application of any amount paid over to Grantor. Any such proceeds
received by Agent shall, after deduction therefrom of all reasonable expenses
actually incurred by Agent, including attorneys' fees, at Agent's option be (1)
released to Grantor, or (2) applied (upon compliance with such terms and
conditions as may be required by Agent) to repair or restoration, either partly
or entirely, of the Mortgaged Property so damaged, or (3) applied to the
payment of the secured indebtedness in such order and manner as Agent, in its
sole discretion, may elect, whether or not due. Grantor shall at all times
comply with the requirements of the insurance policies required hereunder and
of the issuers of such policies and of any board of fire underwriters or
similar body as applicable to or affecting the Mortgaged Property.
(e) RESERVE FOR INSURANCE, TAXES AND ASSESSMENTS. Upon the
occurrence of a default and upon the written request of Agent, to secure
certain of Grantor's obligations in paragraphs (c) and (d) above, but not in
lieu of such obligations, Grantor will deposit with Agent a sum equal to ad
valorem taxes, assessments and charges (which charges for the purpose of this
paragraph shall include without limitation any recurring charge which could
result in a lien against the Mortgaged Property) against the Mortgaged Property
for the current year and the premiums for such policies of insurance for the
current year, all as estimated by Agent and prorated to the end of the calendar
month following the month during which Agent's request is made, and thereafter
will deposit with Agent, on each date when an installment of principal and/or
interest is due on the Notes, sufficient funds (as estimated from time to time
by Agent) to permit Agent to pay at least fifteen (15) days prior to the due
date thereof, the next maturing ad valorem taxes, assessments and charges and
premiums for such policies of insurance. Agent shall have the right to rely
upon tax information furnished by applicable taxing authorities in the payment
of such taxes or assessments and shall have no obligation to make any protest
of any such taxes or assessments. Any excess over the amounts required for
such purposes shall be held by Agent for future use, applied to any secured
indebtedness or refunded to Grantor, at Agent's option, and any deficiency in
such funds so deposited shall be made up by Grantor upon demand of Agent. All
such funds so deposited shall bear no interest, may be mingled with the general
funds of Agent and shall be applied by Agent toward the payment of such taxes,
assessments, charges and premiums when statements therefor are presented to
Agent by Grantor (which statements shall be presented by Grantor to Agent a
reasonable time before the applicable amount is due); provided, however, that,
if a default shall have occurred hereunder, such funds may at Agent's option be
applied to the payment of the secured indebtedness in the order determined by
Agent in its sole discretion, and Agent may (but shall have no obligation) at
any time, in its discretion, apply all or any part of such funds toward the
payment of any such taxes, assessments, charges or premiums which are past due,
together with any penalties or late charges with respect thereto. The
conveyance or transfer of Grantor's interest in the Mortgaged Property for any
reason (including without limitation the foreclosure of a subordinate lien or
security interest or a transfer by operation of law) shall constitute an
assignment or transfer of Grantor's interest in and rights to such funds held
by Agent under this paragraph but subject to the rights of Agent hereunder.
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(f) CONDEMNATION. Grantor shall notify Agent immediately after
Grantor becomes aware of any threatened or pending proceeding for condemnation
affecting the Mortgaged Property or arising out of damage to the Mortgaged
Property, and Grantor shall, at Grantor's expense, diligently prosecute any
such proceedings. Agent shall have the right (but not the obligation) to
participate in any such proceeding, and to be represented by counsel of its own
choice. Agent shall be entitled to receive all sums which may be awarded or
become payable to Grantor for the condemnation of the Mortgaged Property, or
any part thereof, for public or quasi-public use, or by virtue of private sale
in lieu thereof, and any sums which may be awarded or become payable to Grantor
for injury or damage to the Mortgaged Property, provided it is applied to the
secured indebtedness. Grantor shall, promptly upon request of Agent, execute
such additional assignments and other documents as may be necessary from time
to time to permit such participation and to enable Agent to collect and receipt
for any such sums. All such sums are hereby assigned to Agent, and shall,
after deduction therefrom of all reasonable expenses actually incurred by
Agent, including reasonable attorneys' fees, at Agent's option be (1) released
to Grantor, or (2) applied (upon compliance with such terms and conditions as
may be required by Agent) to repair or restoration of the Mortgaged Property so
affected, or (3) applied to the payment of the secured indebtedness in such
order and manner as Agent, in its sole discretion, may elect, whether or not
due. Agent shall not be, under any circumstances, liable or responsible for
failure to collect or to exercise diligence in the collection of any such sum
or for failure to see to the proper application of any amount paid over to
Grantor. Agent is hereby authorized, in the name of Grantor, to execute and
deliver valid acquittances for, and to appeal from, any such award, judgment or
decree. All reasonable costs and expenses (including but not limited to
reasonable attorneys' fees) incurred by Agent in connection with any
condemnation shall be a demand obligation owing by Grantor (which Grantor
hereby promises to pay) to Agent pursuant to this Mortgage.
(g) COMPLIANCE WITH LEGAL REQUIREMENTS. The Mortgaged Property
and the use, operation and maintenance thereof and all activities thereon do
and shall at all times comply with all applicable Legal Requirements (defined
below). The Mortgaged Property is not, and shall not be, dependent on any
other property or premises or any interest therein other than the Mortgaged
Property to fulfill any requirement of any Legal Requirement. Grantor shall
not, by act or omission, permit any building or other improvement not subject
to the lien of this Mortgage to rely on the Mortgaged Property or any interest
therein to fulfill any requirement of any Legal Requirement. No part of the
Mortgaged Property constitutes a non-conforming use under any zoning law or
similar law or ordinance applicable thereto. Grantor has obtained and shall
preserve in force all requisite zoning, utility, building, health and operating
permits from the governmental authorities having jurisdiction over the
Mortgaged Property. If Grantor receives a written notice or claim from any
authority having jurisdiction over the Mortgaged Property that the Mortgaged
Property, or any use, activity, operation or maintenance thereof or thereon, is
not in compliance with any Legal Requirement, Grantor will promptly furnish a
copy of such notice or claim to Agent. Grantor has received no notice and has
no knowledge of any such noncompliance. As used in this Mortgage: (i) the term
"LEGAL REQUIREMENT" means any applicable law (defined below), agreement,
covenant, restriction, easement or condition, as any of the same now exists or
may be changed or amended or come into effect in the future; and (ii) the term
"LAW" means any applicable federal, state or local law, statute, ordinance,
code, rule, regulation, license, permit, authorization, decision, order,
injunction or decree, domestic or foreign.
(h) MAINTENANCE, REPAIR AND RESTORATION. Grantor will keep the
Mortgaged Property in good first class order, repair, operating condition and
appearance, reasonable wear and tear excepted, causing all reasonably necessary
repairs, renewals, replacements, additions and improvements to be promptly
made, and will not allow any of the Mortgaged Property to be wasted or to
deteriorate. Notwithstanding the foregoing, Grantor will not, without the
prior written consent of Agent, (i) remove from the Mortgaged Property any
fixtures or personal property covered by this Mortgage except as permitted by
the Credit Agreement or as
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such as is replaced by Grantor by an article of equal suitability and value,
owned by Grantor, free and clear of any lien or security interest (except that
created by this Mortgage), or (ii) make any structural alteration to the
Mortgaged Property or any other alteration thereto which materially impairs the
value thereof. If any act or occurrence of any kind or nature (including any
condemnation or any casualty for which insurance was not obtained or
obtainable) shall result in material damage to or loss or destruction of the
Mortgaged Property, Grantor shall give prompt notice thereof to Agent and
Grantor shall promptly, at Grantor's sole cost and expense and regardless of
whether insurance or condemnation proceeds (if any) shall be available or
sufficient for the purpose, commence and continue diligently to completion to
restore, repair, replace and rebuild the Mortgaged Property as nearly as
possible to its value, condition and character immediately prior to the damage,
loss or destruction.
(i) NO OTHER LIENS. Grantor will not, without the prior written
consent of Agent, create, place or permit to be created or placed, or through
any act or failure to act, acquiesce in the placing of, or allow to remain, any
deed of trust, mortgage, voluntary or involuntary lien, whether statutory,
constitutional or contractual, security interest, encumbrance or charge, or
conditional sale or other title retention document, against or covering the
Mortgaged Property, or any part thereof, other than the Permitted Encumbrances,
regardless of whether the same are expressly or otherwise subordinate to the
lien or security interest created in this Mortgage, and should any of the
foregoing become attached hereafter in any manner to any part of the Mortgaged
Property without the prior written consent of Agent, Grantor will cause the
same to be promptly discharged and released. Grantor will own all parts of the
Mortgaged Property and will not acquire any fixtures, equipment or other
property forming a part of the Mortgaged Property pursuant to a lease, license,
security agreement or similar agreement, whereby any party has or may obtain
the right to repossess or remove same, without the prior written consent of
Agent. If Agent consents to the voluntary grant by Grantor of any lien,
security interest, or other encumbrance (hereinafter called "SUBORDINATE
MORTGAGE") covering any of the Mortgaged Property or if the foregoing
prohibition is determined by a court of competent jurisdiction to be
unenforceable as to a Subordinate Mortgage, any such Subordinate Mortgage shall
contain express covenants to the effect that: (1) the Subordinate Mortgage is
unconditionally subordinate to this Mortgage and all Leases (hereinafter
defined); (2) if any action (whether judicial or pursuant to a power of sale)
shall be instituted to foreclose or otherwise enforce the Subordinate Mortgage,
no tenant of any of the Leases shall be named as a party defendant, and no
action shall be taken that would terminate any occupancy or tenancy without the
prior written consent of Agent; (3) Rents (hereinafter defined), if collected
by or for the holder of the Subordinate Mortgage, shall be applied first to the
payment of the secured indebtedness then due and expenses incurred in the
ownership, operation and maintenance of the Mortgaged Property in such order as
Agent may determine, prior to being applied to any indebtedness secured by the
Subordinate Mortgage; (4) written notice of default under the Subordinate
Mortgage and written notice of the commencement of any action (whether judicial
or pursuant to a power of sale) to foreclose or otherwise enforce the
Subordinate Mortgage or to seek the appointment of a receiver for all or any
part of the Mortgaged Property shall be given to Agent with or immediately
after the occurrence of any such default or commencement; and (5) neither the
holder of the Subordinate Mortgage, nor any purchaser at foreclosure
thereunder, nor anyone claiming, by, through or under any of them shall succeed
to any of Grantor's rights hereunder without the prior written consent of
Agent.
(j) OPERATION OF MORTGAGED PROPERTY. Grantor will operate the
Mortgaged Property in a good and workmanlike manner and in accordance with all
Legal Requirements and will pay all fees or charges of any kind in connection
therewith. Grantor will keep the Mortgaged Property occupied so as not to
impair the insurance carried thereon. Grantor will not use or occupy or
conduct any activity on or allow the use or occupancy of or the conduct of any
activity on, the Mortgaged Property in any manner which violates any Legal
Requirement or which constitutes a public or private nuisance or which makes
void, voidable or
8 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
9
cancelable, or increases the premium of, any insurance then in force with
respect thereto. Grantor will not initiate or permit any zoning
reclassification of the Mortgaged Property or seek any variance under existing
zoning ordinances applicable to the Mortgaged Property or use or permit the use
of the Mortgaged Property in such a manner which would result in such use
becoming a non-conforming use under applicable zoning ordinances or other Legal
Requirement. Grantor will not impose any easement, restrictive covenant or
encumbrance upon the Mortgaged Property, execute or file any subdivision plat
or condominium declaration affecting the Mortgaged Property or consent to the
annexation of the Mortgaged Property to any municipality, without the prior
written consent of Agent. Grantor will not do or suffer to be done any act
whereby the value of any part of the Mortgaged Property may be materially
lessened. Grantor will preserve, protect, renew, extend and retain all
material rights and privileges granted for or applicable to the Mortgaged
Property. Without the prior written consent of Agent, there shall be no
drilling or exploration for or extraction, removal or production of any
mineral, hydrocarbon, gas, natural element, compound or substance (including
sand and gravel) from the surface or subsurface of the Land regardless of the
depth thereof or the method of mining or extraction thereof. Grantor will
cause all debts and liabilities of any character (including without limitation
all debts and liabilities for labor, material and equipment and all debts and
charges for utilities servicing the Mortgaged Property) incurred in the
construction, maintenance, operation and development of the Mortgaged Property
to be promptly paid, unless the same are diligently contested in good faith.
(k) SUITS AND CLAIMS; LOAN DOCUMENTS. Except as disclosed to
Agent in writing, there is no suit, action, claim, investigation, inquiry,
proceeding or demand pending (or, to Grantor's knowledge, threatened) which
affects the Mortgaged Property (including, without limitation, any which
challenges or otherwise pertains to Grantor's title to the Mortgaged Property)
or the validity, enforceability or priority of any of the Loan Documents. The
Loan Documents constitute legal, valid and binding obligations of Grantor (and
of each guarantor, if any) enforceable in accordance with their terms, except
as the enforceability thereof may be limited by Debtor Relief Laws (hereinafter
defined) and except as the availability of certain remedies may be limited by
general principles of equity. Grantor is not a "foreign person" within the
meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and
7701 (i.e. Grantor is not a non-resident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate as those terms are defined therein
and in any regulations promulgated thereunder). The loan evidenced by the
Notes is solely for business purposes, and is not for personal, family,
household or agricultural purposes.
(l) FURTHER ASSURANCES. Grantor will, promptly on the reasonable
request of Agent, (i) correct any defect, error or omission which may be
discovered in the contents, execution or acknowledgment of this Mortgage or any
other Loan Document; (ii) execute, acknowledge, deliver, procure and record
and/or file such further documents (including, without limitation, further
deeds of trust, security agreements, financing, statements, continuation
statements, and assignments of rents or leases) and do such further acts as may
be necessary, desirable or proper to carry out more effectively the purposes of
this Mortgage and the other Loan Documents, to more fully identify and subject
to the liens and security interests hereof any property intended to be covered
hereby (including specifically, but without limitation, any renewals,
additions, substitutions, replacements, or appurtenances to the Mortgaged
Property) or as deemed advisable by any Holder to protect the lien or the
security interest hereunder against the rights or interests of third persons;
and (iii) provide such certificates, documents, reports, information,
affidavits and other instruments and do such further acts as may be necessary,
desirable or proper in the reasonable determination of Agent or any other
Holder to enable Agent or such other Holder to comply with the requirements or
requests of any agency having jurisdiction over Agent or such other Holder or
any examiners of such agencies with respect to the indebtedness secured hereby,
Grantor or the Mortgaged Property. Grantor shall pay all reasonable costs
connected with any of the foregoing, which shall be a demand obligation owing
by Grantor (which Grantor hereby promises to pay) to Agent or such other Holder
pursuant to this Mortgage.
9 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
10
(m) FEES AND EXPENSES. Without limitation of any other provision
of this Mortgage or of any other Loan Document and to the extent not prohibited
by applicable law, Grantor will pay, and will reimburse to Agent and each other
Holder and/or Trustee on demand to the extent paid by Agent or such other
Holder and/or Trustee, provided such amounts are reasonable: (i) all appraisal
fees, filing and recording fees, taxes, abstract fees, title search or
examination fees, uniform commercial code search fees, escrow fees, reasonable
attorneys' fees, environmental inspection fees, and all other out-of-pocket
costs and expenses of every character incurred by Grantor, Agent or any other
Holder and/or Trustee in connection with the preparation of the Loan Documents,
the evaluation, closing and funding of the loan evidenced by the Loan
Documents, and any and all amendments and supplements to this Mortgage, the
Notes or any other Loan Documents or any approval, consent, waiver, release or
other matter requested or required hereunder or thereunder, or otherwise
attributable or chargeable to Grantor as owner of the Mortgaged Property; and
(ii) all reasonable costs and expenses, including, reasonable attorneys' fees
and expenses, incurred or expended in connection with the exercise of any right
or remedy, or the enforcement of any obligation of Grantor, hereunder or under
any other Loan Document.
(n) INDEMNIFICATION.
(i) Grantor will indemnify and hold harmless Agent, each
other Holder and Trustee from and against, and reimburse them on demand for,
any and all Indemnified Matters (defined below). For purposes of this
paragraph (n), the terms "Agent," "Holder" and "Trustee" shall include the
directors, officers, partners, employees and agents of Agent, each Holder and
Trustee, respectively, and any persons owned or controlled by, owning or
controlling, or under common control or affiliated with Agent, each Holder or
Trustee, respectively. WITHOUT LIMITATION, THE FOREGOING INDEMNITIES SHALL
APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO MATTERS WHICH IN WHOLE OR IN
PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER)
INDEMNIFIED PERSON. However, such indemnities shall not apply to a particular
indemnified person to the extent that the subject of the indemnification is
caused by or arises out of the gross negligence or willful misconduct of that
indemnified person. Any amount to be paid under this paragraph (n) by Grantor
to Agent, any other Holder and/or Trustee shall be a demand obligation owing by
Grantor (which Grantor hereby promises to pay) to Agent, such other Holder
and/or Trustee pursuant to this Mortgage. Nothing in this paragraph, elsewhere
in this Mortgage or in any other Loan Document shall limit or impair any rights
or remedies of Agent, any other Holder and/or Trustee (including without
limitation any rights of contribution or indemnification) against Grantor or
any other person under any other provision of this Mortgage, any other Loan
Document, any other agreement or any applicable Legal Requirement.
(ii) As used herein, the term "INDEMNIFIED MATTERS" means
any and all claims, demands, liabilities (including strict liability), losses,
damages (including consequential damages), causes of action, judgments,
penalties, costs and expenses (including without limitation, reasonable fees
and expenses of attorneys and other professional consultants and experts, and
of the investigation and defense of any claim, whether or not such claim is
ultimately defeated, and the settlement of any claim or judgment including all
value paid or given in settlement) of every kind, known or unknown, foreseeable
or unforeseeable, which may be imposed upon, asserted against or incurred or
paid by Agent, any other Holder and/or Trustee at any time and from time to
time, whenever imposed, asserted or incurred, because of, resulting from, in
connection with, or arising out of any transaction, act, omission, event or
circumstance in any way connected with the Mortgaged Property or with this
Mortgage or any other Loan Document, including, but not limited to any bodily
injury or death or property damage occurring in or upon or in the vicinity of
the Mortgaged Property through any cause whatsoever at any time on or before
the Release Date (defined below), any act performed
10 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
11
or omitted to be performed hereunder or under any other Loan Document, any
breach by Grantor of any representation, warranty, covenant, agreement or
condition contained in this Mortgage or in any other Loan Document, any default
as defined herein, and any claim under or with respect to any Lease or any
Environmental Matters. As used herein, the term "ENVIRONMENTAL MATTER" means:
(a) the presence of any Hazardous Substance on, in, under, above or about the
Mortgaged Property, or the migration or release or threatened migration or
release of any Hazardous Substance on, to, from or through the Mortgaged
Property, on or at any time before the Release Date; or (b) any act, omission,
event or circumstance existing or occurring in connection with the handling,
treatment, containment, removal, storage, decontamination, clean-up, transport
or disposal of any Hazardous Substance which is at any time on or before the
Release Date present on, in, under, above or about the Mortgaged Property; or
(c) any violation on or before the Release Date, of any Environmental
Requirement in effect on or before the Release Date, regardless of whether any
act, omission, event or circumstance giving rise to the violation constituted a
violation at the time of the occurrence or inception of such act, omission,
event or circumstance; or (d) any Environmental Claim, or the filing or
imposition of any environmental lien against the Mortgaged Property, because
of, resulting from, in connection with, or arising out of any of the matters
referred to in clauses (a) through (c) preceding; and regardless of whether any
of the matters referred to in the foregoing clauses (a) through (d) was caused
by Grantor or Grantor's tenant or any subtenant, or a prior owner of the
Mortgaged Property or its tenant or any subtenant, or any third party. The
term "RELEASE DATE" as used herein means the earlier of the following two
dates: (i) the date on which the indebtedness and obligations secured hereby
have been paid and performed in full and this Mortgage has been released, or
(ii) the date on which the lien of this Mortgage is fully and finally
foreclosed or a conveyance by deed in lieu of such foreclosure is fully and
finally effective, and possession of the Mortgaged Property has been given to
the purchaser or grantee free of occupancy and claims to occupancy by Grantor
and Grantor's heirs, devisees, representatives, successors and assigns;
provided, that if such payment, performance, release, foreclosure or conveyance
is challenged, in bankruptcy proceedings or otherwise, the Release Date shall
be deemed not to have occurred until such challenge is rejected, dismissed or
withdrawn with prejudice. The indemnities in this paragraph (n) shall not
terminate upon the Release Date or upon the release, foreclosure or other
termination of this Mortgage but will survive the Release Date, foreclosure of
this Mortgage or conveyance in lieu of foreclosure, the repayment of the
secured indebtedness, the discharge and release of this Mortgage and the other
Loan Documents, any bankruptcy or other debtor relief proceeding, and any other
event whatsoever.
(o) TAXES ON NOTES OR MORTGAGE. Grantor will promptly pay all
income, franchise and other taxes owing by Grantor and any stamp taxes or other
taxes (unless such payment by Grantor is prohibited by law) which may be
required to be paid with respect to the Notes, this Mortgage or any other
instrument evidencing or securing any of the secured indebtedness. In the
event of the enactment after this date of any law of any governmental entity
applicable to Agent any other Holder, the Notes, the Mortgaged Property, this
Mortgage or any other Loan Document deducting from the value of property for
the purpose of taxation any lien or security interest thereon, or imposing upon
Agent or any other Holder the payment of the whole or any part of the taxes or
assessments or charges or liens herein required to be paid by Grantor, or
changing in any way the laws relating to the taxation of deeds of trust or
mortgages or security agreements or debts secured by deeds of trust or
mortgages or security agreements or the interest of the mortgagee or secured
party in the property covered thereby, or the manner of collection of such
taxes, so as to affect this Mortgage or the indebtedness secured hereby or
Agent or any other Holder, then, and in any such event, Grantor, upon demand by
Agent or any such other Holder, shall pay such taxes, assessments, charges or
liens, or reimburse Agent or such other Holder therefor to the extent permitted
by law.
(p) STATEMENT CONCERNING NOTES OR MORTGAGE. Grantor shall at any
time and from time to time furnish within seven (7) days of a written request
by Agent a written statement in such form as may be
11 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
12
required by Agent stating that: (i) the Notes, this Mortgage and the other
Loan Documents are valid and binding obligations of Grantor, enforceable
against Grantor in accordance with their terms; (ii) the unpaid principal
balance of the Notes; (iii) the date to which interest on the Notes are paid;
(iv) the Notes, this Mortgage and the other Loan Documents have not been
released, subordinated or modified; and (v) there are no offsets or defenses
against the enforcement of the Notes, this Mortgage or any other Loan Document.
If any of the foregoing statements are untrue, Grantor shall, alternatively,
specify the reasons therefor.
(q) ANNUAL APPRAISAL. Agent may at its option obtain at Grantor's
reasonable expense, once in each year (or as otherwise requested by Agent but
in any event no more that once each year) an appraisal of the Mortgaged
Property or any part thereof prepared in accordance with written instructions
from Agent by a third-party appraiser engaged directly by Agent. Each such
appraiser and appraisal shall be reasonably satisfactory to Agent. The costs
of each such appraisal shall be a part of the secured indebtedness and shall be
payable by Grantor to Agent on demand (which obligation Grantor hereby promises
to pay).
Section 2.2. PERFORMANCE BY AGENT ON GRANTOR'S BEHALF. Grantor
agrees that, if Grantor fails to perform any act or to take any action which
under any Loan Document Grantor is required to perform or take, or to pay any
money which under any Loan Document Grantor is required to pay, and whether or
not the failure then constitutes a default hereunder or thereunder, and whether
or not there has occurred any default or defaults hereunder or the secured
indebtedness has been accelerated, Agent, in Grantor's name or its own name,
may, but shall not be obligated to, perform or cause to be performed such act
or take such action or pay such money, and any reasonable expenses so incurred
by Agent and any money so paid by Agent shall be a demand obligation owing by
Grantor to Agent (which obligation Grantor hereby promises to pay), shall be a
part of the indebtedness secured hereby, and Agent, upon making such payment,
shall be subrogated to all of the rights of the person, entity or body politic
receiving such payment. Agent and its designees shall have the right to enter
upon the Mortgaged Property at any reasonable time for any such purposes. No
such payment or performance by Agent shall waive or cure any default or waive
any right, remedy or recourse of Agent. Any such payment may be made by Agent
in reliance on any statement, invoice or claim without inquiry into the
validity or accuracy thereof. Each amount due and owing by Grantor to Agent
pursuant to this Mortgage shall bear interest, from the date such amount
becomes due until paid, at the rate per annum provided in the Notes for
interest on past due principal owed on the Notes but never in excess of the
maximum non-usurious amount permitted by applicable law, which interest shall
be payable to Agent on demand; and all such amounts, together with such
interest thereon, shall automatically and without notice be a part of the
indebtedness secured hereby. The amount and nature of any expense by Agent
hereunder and the time when paid shall be fully established by the certificate
of Agent or any of Agent's officers or agents.
Section 2.3. ABSENCE OF OBLIGATIONS OF AGENT WITH RESPECT TO
MORTGAGED PROPERTY. Notwithstanding anything in this Mortgage to the contrary,
including, without limitation, the definition of "Mortgaged Property" and/or
the provisions of ARTICLE 3 hereof, (i) to the extent permitted by applicable
law, the Mortgaged Property is composed of Grantor's rights, title and
interests therein but not Grantor's obligations, duties or liabilities
pertaining thereto, (ii) neither Agent nor any other Holder assumes or shall
have any obligations, duties or liabilities in connection with any portion of
the items described in the definition of "Mortgaged Property" herein, prior to
obtaining title to such Mortgaged Property, whether by foreclosure sale, the
granting of a deed in lieu of foreclosure or otherwise, and (iii) Agent, and
each other Holder may, at any time prior to acquisition of title to any portion
of the Mortgaged Property as above described, advise any party in writing as to
the extent of such Holder's interest therein and/or expressly disaffirm in
writing any rights, interests, obligations, duties and/or liabilities with
respect to such Mortgaged Property or matters related thereto. Without
limiting the generality of the foregoing, it is understood and
12 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
13
agreed that Agent and each other Holder shall have no obligations, duties or
liabilities prior to acquisition of title to any portion of the Mortgaged
Property, as lessee under any lease or purchaser or seller under any contract
or option unless Agent and each other Holder elects otherwise by written
notification.
ARTICLE 3
COLLATERAL ASSIGNMENT OF RENTS AND LEASES
Section 3.1. ASSIGNMENT. As additional security for the
indebtedness secured hereby, Grantor hereby assigns to Agent, as agent for the
Banks, all Rents (hereinafter defined) and all of Grantor's rights in and under
all Leases (hereinafter defined). Upon the occurrence of a default hereunder,
Agent shall have the right, power and privilege (but shall be under no duty) to
demand possession of the Rents, which demand shall to the fullest extent
permitted by applicable law be sufficient action by Agent to entitle Agent to
immediate and direct payment of the Rents (including delivery to Agent of Rents
collected for the period in which the demand occurs and for any subsequent
period), for application as provided in this Mortgage, all without the
necessity of any further action by Agent, including, without limitation, any
action to obtain possession of the Land, Improvements or any other portion of
the Mortgaged Property. Grantor hereby authorizes and directs the tenants
under the Leases to pay Rents to Agent upon written demand by Agent, without
further consent of Grantor, without any obligation to determine whether a
default has in fact occurred and regardless of whether Agent has taken
possession of any portion of the Mortgaged Property, and the tenants may rely
upon any written statement delivered by Agent to the tenants. Any such payment
to Agent shall constitute payment to Grantor under the Leases, and Grantor
hereby appoints Agent as Grantor's lawful attorney-in-fact for giving, and
Agent is hereby empowered to give, acquittances to any tenants for such
payments to Agent after a default. The assignment contained in this Section
shall become null and void upon the release of this Mortgage. As used herein:
(i) "Lease" means each existing or future lease, sublease (to the extent of
Grantor's rights thereunder) or other agreement under the terms of which any
person has or acquires any right to occupy or use the Mortgaged Property, or
any part thereof, or interest therein, and each existing or future guaranty of
payment or performance thereunder, and all extensions, renewals, modifications
and replacements of each such lease, sublease, agreement or guaranty; and (ii)
"Rents" means all of the rents, revenue, income, profits and proceeds derived
and to be derived from the Mortgaged Property or arising from the use or
enjoyment of any portion thereof or from any Lease, including, but not limited
to liquidated damages following default under any such Lease, all proceeds
payable under any policy of insurance covering loss of rents resulting from
untenantability caused by damage to any part of the Mortgaged Property, all of
Grantor's rights to recover monetary amounts from any tenant in bankruptcy
including, without limitation, rights of recovery for use and occupancy and
damage claims arising out of Lease defaults, including rejections, under any
applicable Debtor Relief Law (as hereinafter defined), together with any sums
of money that may now or at any time hereafter be or become due and payable to
Grantor by virtue of any and all royalties, overriding royalties, bonuses,
delay rentals and any other amount of any kind or character arising under any
and all present and all future oil, gas, mineral and mining leases covering the
Mortgaged Property or any part thereof, and all proceeds and other amounts paid
or owing to Grantor under or pursuant to any and all contracts and bonds
relating to the construction or renovation of the Mortgaged Property.
Section 3.2. COVENANTS, REPRESENTATIONS AND WARRANTIES CONCERNING
LEASES AND RENTS. Grantor covenants, represents and warrants to each Holder
that: (i) Grantor has good title to, and is the owner of the entire landlord's
interest in, the Leases and Rents hereby assigned and authority to assign them;
(ii) all Leases are valid and enforceable, and in full force and effect, and
are unmodified except as stated therein; (iii) unless otherwise stated in a
Permitted Encumbrance, no Rents or Leases have been or will be assigned,
13 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
14
mortgaged, pledged or otherwise encumbered and no other person has or will
acquire any right, title or interest in such Rents or Leases; (iv) no Rents
have been waived, released, discounted, set off or compromised; (v) except as
stated in the Leases, Grantor has not received any funds or deposits from any
tenant for which credit has not already been made on account of accrued Rents;
(vi) Grantor shall perform all of its obligations under the Leases and enforce
the tenants' obligations under the leases to the extent enforcement is prudent
under the circumstances; (vii) Grantor will not without the prior written
consent of Agent, enter into any Lease after the date hereof, or waive,
release, discount, set off, compromise, reduce or defer any Rent, receive or
collect Rents more than one (1) month in advance, grant any rent- free period
to any tenant, reduce any Lease term or waive, release or otherwise modify any
other material obligation under any Lease, renew or extend any Lease except in
accordance with a right of the tenant thereto in such Lease, approve or consent
to an assignment of a Lease or a subletting of any part of the premises covered
by a Lease, or settle or compromise any claim against a tenant under a Lease in
bankruptcy or otherwise; provided, however, Agent will not unreasonably
withhold or delay its consent to any of the foregoing actions; (viii) Grantor
will not, except in good faith where the tenant is in material default
thereunder, terminate or consent to the cancellation or surrender of any Lease
having an unexpired term of one year or more unless promptly after the
cancellation or surrender a new Lease of such premises is made with a new
tenant having a credit standing, in Agent's judgment, at least equivalent to
that of the tenant whose Lease was canceled, on substantially the same terms as
the terminated or canceled Lease; (ix) Grantor will not execute any Lease
except in accordance with the Loan Documents and for actual occupancy by the
tenant thereunder; (x) Grantor shall give prompt notice to Agent, as soon as
Grantor first obtains notice, of any claim, or the commencement of any action,
by any tenant or subtenant under or with respect to a Lease regarding any
claimed damage, default, diminution of or offset against Rent, cancellation of
the Lease, or constructive eviction, excluding, however, notices of default
under residential Leases, and Grantor shall defend, at Grantor's reasonable
expense, any proceeding pertaining to any Lease, including, if Agent so
requests, any such proceeding, to which Agent is a party; (xi) Grantor shall as
requested by Agent (but in any event no more than once per calendar quarter),
within ten (10) days of each written request, deliver to Agent a complete rent
roll of the Mortgaged Property in such detail as Agent may require, and
financial statements of the tenants, subtenants and guarantors under the Leases
to the extent available to Grantor, and deliver to such of the tenants and
others obligated under the Leases specified by Agent written notice of the
assignment in SECTION 3.1 hereof in form and content satisfactory to Agent;
(xii) promptly upon written request by Agent, Grantor shall deliver to Agent
copies of all Leases and copies of all records relating thereto; (xiii) there
shall be no merger of the leasehold estates, created by the Leases, with the
fee estate of the Land without the prior written consent of Agent; and (xiv)
Agent may at any time and from time to time by specific written instrument
intended for the purpose, unilaterally subordinate the lien of this Mortgage to
any Lease, without joinder or consent of, or notice to, Grantor, any tenant or
any other person, and notice is hereby given to each tenant under a Lease of
such right to subordinate. No such subordination shall constitute a
subordination to any lien or other encumbrance, whenever arising, or improve
the right of any junior lienholder; and nothing herein shall be construed as
subordinating this Mortgage to any Lease.
Section 3.3. NO LIABILITY OF AGENT. Agent's acceptance of this
assignment shall not be deemed to constitute Agent as a "mortgagee in
possession," nor obligate Agent to appear in or defend any proceeding relating
to any Lease or to the Mortgaged Property, or to take any action hereunder,
expend any money, incur any expenses, or perform any obligation or liability
under any Lease, or assume any obligation for any deposit delivered to Grantor
by any tenant and not as such delivered to and accepted by Agent. Agent shall
not be liable for any injury or damage to person or property in or about the
Mortgaged Property unless due to Agent's gross negligence or willful
misconduct, or for Agent's failure to collect or to exercise diligence in
collecting, Rents, but shall be accountable only for Rents that it shall
actually receive. Neither the assignment of Leases and Rents nor enforcement
of Agent's rights regarding Leases and Rents (including collection of
14 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
15
Rents) nor possession of the Mortgaged Property by Agent nor Agent's consent to
or approval of any Lease (nor all of the same), shall render Agent liable on
any obligation under or with respect to any Lease or constitute affirmation of,
or any subordination to, any Lease, occupancy, use or option. If Agent seeks
or obtains any judicial relief regarding Rents or Leases, the same shall in no
way prevent the concurrent or subsequent employment of any other appropriate
rights or remedies nor shall same constitute an election of judicial relief for
any foreclosure or any other purpose. Neither Agent has nor assumes any
obligations as lessor or landlord with respect to any Lease. The rights of
Agent under this ARTICLE 3 shall be cumulative of all other rights of Agent
under the Loan Documents or otherwise.
ARTICLE 4
DEFAULT
Section 4.1. EVENTS OF DEFAULT. The occurrence of any one of the
following shall be a default under this Mortgage ("DEFAULT"):
(a) DEFAULT UNDER CREDIT AGREEMENT. An Event of Default under the
Credit Agreement occurs and is continuing, subject to applicable notice and
cure periods.
(b) TRANSFER OF THE MORTGAGED PROPERTY. Any sale, lease,
conveyance, assignment, pledge, encumbrance, or transfer of all or any part of
the Mortgaged Property or any interest therein, voluntarily or involuntarily,
whether by operation of law or otherwise, except: (i) sales or transfers of
items of the Accessories which have become obsolete or worn beyond practical
use and which have been replaced by adequate substitutes, owned by Grantor,
having a value equal to or greater than the replaced items when new; (ii) the
grant, in the ordinary course of business, of a leasehold interest in a part of
the Improvements to a tenant for occupancy, not containing a right or option to
purchase and not in contravention of any provision of this Mortgage or of any
other Loan Document; and (iii) such sales, leases, conveyances, assignments,
pledges, encumbrances or transfer permitted under the Credit Agreement. Agent,
on behalf of and upon the direction of Required Banks (as defined in the Credit
Agreement) may, in its sole discretion, waive a default under this paragraph,
but it shall have no obligation to do so, and any waiver may be conditioned
upon such one or more of the following, (if any) which Agent may require: the
grantee's integrity, reputation, character, creditworthiness and management
ability being reasonably satisfactory to Agent in its sole judgment and grantee
executing, prior to such sale or transfer, a written assumption agreement
containing such terms as Agent may require, a principal paydown on the Notes,
an increase in the rate of interest payable under the Notes, a transfer fee, a
modification of the term of the Notes, and any other modification of the Loan
Documents which Agent may require.
(c) TRANSFER OF OWNERSHIP OF GRANTOR. The sale, pledge,
encumbrance, assignment or transfer, voluntarily or involuntarily, whether by
operation of law or otherwise, of any interest in Grantor (if Grantor is not a
natural person but is a corporation, partnership, trust or other legal entity),
without the prior written consent of Agent (including, without limitation, if
Grantor is a partnership or joint venture, the withdrawal from or admission
into it of any general partner or joint venturer), which consent shall not be
unreasonably withheld, except: (i) sales, pledges, encumbrances, assignments or
transfers permitted under the Credit Agreement, and (ii) sales or transfers of
stock in Grantor if Grantor is a corporation or sales or transfers of limited
partnership interests in Grantor if Grantor is a limited partnership provided
that such sales or transfers, together with any prior sales or transfers of
interests in Grantor, do not result in more than 49% of the total beneficial
interests in Grantor having been sold or transferred since the date of this
Mortgage.
15 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
16
(d) GRANT OF EASEMENT, ETC. Without the prior written consent of
Agent, which consent shall not be unreasonably withheld, Grantor grants any
easement or dedication, files any plat, condominium declaration, or
restriction, or otherwise encumbers the Mortgaged Property, or seeks or permits
any zoning reclassification or variance, unless such action is expressly
permitted by the Loan Documents or does not affect the Mortgaged Property.
(e) ABANDONMENT. The owner of the Mortgaged Property abandons any
of the Mortgaged Property for a period in excess of thirty (30) consecutive
days.
(f) DEFAULT UNDER OTHER LIEN. A default or event of default
occurs under any lien, security interest or assignment covering the Mortgaged
Property or any part thereof (whether or not Agent has consented, and without
hereby implying Agent's consent, to any such lien, security interest or
assignment not created hereunder) and such default is not cured within any
applicable grace period provided by such document, or the holder of any such
lien, security interest or assignment declares a default or institutes
foreclosure or other proceedings for the enforcement of its remedies
thereunder.
(g) INTENTIONALLY DELETED.
(h) INTENTIONALLY DELETED.
(i) LIQUIDATION, ETC. The liquidation, termination, dissolution,
merger, consolidation or failure to maintain good standing in the State of
Texas (or in the case of an individual, the death or legal incapacity) of the
owner of the Mortgaged Property or any person obligated to pay any part of the
secured indebtedness.
(j) ENFORCEABILITY; PRIORITY. Any Loan Document shall for any
reason without Agent's specific written consent cease to be in full force and
effect, or shall be declared null and void or unenforceable in whole or in
part, or the validity or enforceability thereof, in whole or in part, shall be
challenged or denied by any party thereto other than Agent; or the liens,
mortgages or security interests of Agent or any other Holder in any of the
Mortgaged Property become unenforceable in whole or in part, or cease to be of
the priority herein required, or the validity or enforceability thereof, in
whole or in part, shall be challenged or denied by Grantor or any person
obligated to pay any part of the secured indebtedness.
Section 4.2. NOTICE AND CURE. If any provision of this Mortgage or
any other Loan Document provides for Holder to give to Grantor any notice
regarding a default or incipient default, then if Agent shall fail to give such
notice to Grantor as provided, the sole and exclusive remedy of Grantor for
such failure shall be to seek appropriate equitable relief to enforce the
agreement to give such notice and to have any acceleration of the maturity of
the Notes and the secured indebtedness postponed or revoked and foreclosure
proceedings in connection therewith delayed or terminated pending or upon the
curing of such default in the manner and during the period of time permitted by
such agreement, if any, and Grantor shall have no right to damages or any other
type of relief not herein specifically set out against Agent or any other
Holder, all of which damages or other relief are hereby waived by Grantor.
Nothing herein or in any other Loan Document shall operate or be construed to
add on or make cumulative any cure or grace periods specified in any of the
Loan Documents.
16 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
17
ARTICLE 5
REMEDIES
Section 5.1. CERTAIN REMEDIES. If a default shall occur, Agent, upon
the direction of Required Banks (as defined in the Credit Agreement), may (but
shall have no obligation to) exercise any one or more of the following
remedies, without notice (unless notice is required by applicable statute or
the terms hereof or any of the Loan Documents):
(a) ACCELERATION. Agent may at any time and from time to time
declare any or all of the secured indebtedness immediately due and payable and
such secured indebtedness shall thereupon be immediately due and payable,
without presentment, demand, protest, notice of protest, notice of acceleration
or of intention to accelerate or any other notice or declaration of any kind,
all of which are hereby expressly waived by Grantor, except as provided above.
(b) ENFORCEMENT OF ASSIGNMENT OF RENTS. Prior or subsequent to
taking possession of any portion of the Mortgaged Property or taking any action
with respect to such possession, Agent may: (1) collect and/or xxx for the
Rents in Agent's own name, give receipts and releases therefor, and after
deducting all reasonable expenses of collection, including attorneys' fees and
expenses, apply the net proceeds thereof to the secured indebtedness in such
manner and order as Agent may elect and/or to the operation and management of
the Mortgaged Property, including the payment of management, brokerage and
attorney's fees and expenses; and (2) require Grantor to transfer all security
deposits and records thereof to Agent together with original counterparts of
the Leases.
(c) FORECLOSURE. Upon the occurrence of a default, Trustee, or
his successor or substitute, is authorized and empowered and it shall be his
special duty at the request of Agent to sell the Mortgaged Property or any part
thereof situated in the State of Texas, at the courthouse of any county
(whether or not the counties in which the Mortgaged Property is located are
contiguous, if the Mortgaged Property is located in more than one county) in
the State of Texas in which any part of the Mortgaged Property is situated, at
public vendue to the highest bidder for cash between the hours of ten o'clock
a.m. and four o'clock p.m. on the first Tuesday in any month or at such other
place, time and date as provided by the statutes of the State of Texas then in
force governing sales of real estate under powers of sale conferred by deed of
trust, after having given notice of such sale in accordance with such statutes.
Any sale made by Trustee hereunder may be as an entirety or in such parcels as
Agent may request. To the extent permitted by applicable law, any sale may be
adjourned by announcement at the time and place appointed for such sale without
further notice except as may be required by law. The sale by Trustee of less
than the whole of the Mortgaged Property shall not exhaust the power of sale
herein granted, and Trustee is specifically empowered to make successive sale
or sales under such power until the whole of the Mortgaged Property shall be
sold; and, if the proceeds of such sale of less than the whole of the Mortgaged
Property shall be less than the aggregate of the indebtedness secured hereby
and the expense of executing this trust as provided herein, this Mortgage and
the lien hereof shall remain in full force and effect as to the unsold portion
of the Mortgaged Property just as though no sale had been made; provided,
however, that Grantor shall never have any right to require the sale of less
than the whole of the Mortgaged Property but Agent shall have the right, at its
sole election, to request Trustee to sell less than the whole of the Mortgaged
Property. Trustee may, after any request or direction by Agent, sell not only
the real property but also the Collateral and other interests which are a part
of the Mortgaged Property, or any part thereof, as a unit and as a part of a
single sale, or may sell any part of the Mortgaged Property separately from the
remainder of the Mortgaged Property. It shall not be necessary for Trustee to
have taken possession of any part of the Mortgaged Property or to have present
or to exhibit at any sale any of the Collateral. After each sale, Trustee
shall make to the purchaser or purchasers at such sale good and sufficient
conveyances in the name of Grantor, conveying the property so sold to the
purchaser or purchasers with
17 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
18
general warranty of title by Grantor, subject to the Permitted Encumbrances
(and to such leases and other matters, if any, as Trustee may elect upon
request of Agent), and shall receive the proceeds of said sale or sales and
apply the same as herein provided. Payment of the purchase price to the
Trustee shall satisfy the obligation of purchaser at such sale therefor, and
such purchaser shall not be responsible for the application thereof. The power
of sale granted herein shall not be exhausted by any sale held hereunder by
Trustee or his substitute or successor, and such power of sale may be exercised
from time to time and as many times as Agent may deem necessary until all of
the Mortgaged Property has been duly sold and all secured indebtedness has been
fully paid. In the event any sale hereunder is not completed or is defective
in the opinion of Agent, such sale shall not exhaust the power of sale
hereunder and Agent shall have the right to cause a subsequent sale or sales to
be made hereunder. Any and all statements of fact or other recitals made in
any deed or deeds or other conveyances given by Trustee or any successor or
substitute appointed hereunder as to nonpayment of the secured indebtedness or
as to the occurrence of any default, or as to Agent having declared all of said
indebtedness to be due and payable, or as to the request to sell, or as to
notice of time, place and terms of sale and the properties to be sold having
been duly given, or as to the refusal, failure or inability to act of Trustee
or any substitute or successor trustee, or as to the appointment of any
substitute or successor trustee, or as to any other act or thing having been
duly done by Agent or by such Trustee, substitute or successor, shall be taken
as prima facie evidence of the truth of the facts so stated and recited. The
Trustee or his successor or substitute may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Trustee, including the posting of notices and the conduct of sale, but
in the name and on behalf of Trustee, his successor or substitute. If Trustee
or his successor or substitute shall have given notice of sale hereunder, any
successor or substitute Trustee thereafter appointed may complete the sale and
the conveyance of the property pursuant thereto as if such notice had been
given by the successor or substitute Trustee conducting the sale.
(d) UNIFORM COMMERCIAL CODE. Without limitation of Agent's rights
of enforcement with respect to the Collateral or any part thereof in accordance
with the procedures for foreclosure of real estate, Agent may exercise its
rights of enforcement with respect to the Collateral or any part thereof under
the Texas Business and Commerce Code as amended (or under the Uniform
Commercial Code in force in any other state to the extent the same is
applicable law) and in conjunction with, in addition to or in substitution for
those rights and remedies: (1) Agent may enter upon Grantor's premises to take
possession of, assemble and collect the Collateral or, to the extent and for
those items of the Collateral permitted under applicable law, to render it
unusable; (2) Agent may require Grantor to assemble the Collateral and make it
available at a place Agent designates which is mutually convenient to allow
Agent to take possession or dispose of the Collateral; (3) written notice
mailed to Grantor as provided herein at least ten (10) days prior to the date
of public sale of the Collateral or prior to the date after which private sale
of the Collateral will be made shall constitute reasonable notice; (4) any sale
made pursuant to the provisions of this paragraph shall be deemed to have been
a public sale conducted in a commercially reasonable manner if held
contemporaneously with and upon the same notice as required for the sale of the
Mortgaged Property under power of sale as provided in paragraph (c) above in
this SECTION 5.1; (5) in the event of a foreclosure sale, whether made by
Trustee under the terms hereof, or under judgment of a court, the Collateral
and the other Mortgaged Property may, at the option of Agent, be sold as a
whole; (6) it shall not be necessary that Agent take possession of the
Collateral or any part thereof prior to the time that any sale pursuant to the
provisions of this Section is conducted and it shall not be necessary that the
Collateral or any part thereof be present at the location of such sale; (7)
with respect to application of proceeds of disposition of the Collateral under
SECTION 5.3 hereof, the costs and expenses incident to disposition shall
include the reasonable expenses of retaking, holding, preparing for sale or
lease, selling, leasing, and the like and the reasonable attorneys' fees and
legal expenses incurred by Agent and each other Holder; (8) any and all
statements of fact or other recitals made in any xxxx of sale or assignment or
other instrument evidencing any foreclosure sale hereunder as to nonpayment of
the
18 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
19
secured indebtedness or as to the occurrence of any default, or as to Agent
having declared all of such indebtedness to be due and payable, or as to notice
of time, place and terms of sale and of the properties to be sold having been
duly given, or as to any other act or thing having been duly done by Agent,
shall be taken as prima facie evidence of the truth of the facts so stated and
recited; and (9) Agent may appoint or delegate any one or more persons as agent
to perform any act or acts necessary or incident to any sale held by Agent,
including the sending of notices and the conduct of the sale, but in the name
and on behalf of Agent.
(e) LAWSUITS. Agent may proceed by a suit or suits in equity or
at law, whether for collection of the indebtedness secured hereby, the specific
performance of any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for any foreclosure hereunder or for
the sale of the Mortgaged Property under the judgment or decree of any court or
courts of competent jurisdiction.
(f) ENTRY ON MORTGAGED PROPERTY. Agent is authorized, prior or
subsequent to the institution of any foreclosure proceedings, to the fullest
extent permitted by applicable law, to enter upon the Mortgaged Property, or
any part thereof, and to take possession of the Mortgaged Property and all
books and records relating thereto, and to exercise without interference from
Grantor any and all rights which Grantor has with respect to the management,
possession, operation, protection or preservation of the Mortgaged Property.
Agent shall not be deemed to have taken possession of the Mortgaged Property or
any part thereof except upon the exercise of its right to do so, and then only
to the extent evidenced by its demand and overt act specifically for such
purpose. All reasonable costs, expenses and liabilities of every character
incurred by Agent in managing, operating, maintaining, protecting, or
preserving the Mortgaged Property shall constitute a demand obligation of
Grantor (which obligation Grantor hereby promises to pay) to Agent pursuant to
this Mortgage. If necessary to obtain the possession provided for above, Agent
may invoke any and all legal remedies to dispossess Grantor. In connection
with any action taken by Agent pursuant to this Section, Agent shall not be
liable for any loss sustained by Grantor resulting from any failure to let the
Mortgaged Property, or any part thereof, or from any act or omission of Agent
in managing the Mortgaged Property unless such loss is caused by the willful
misconduct and bad faith of Agent, nor shall Agent be obligated to perform or
discharge any obligation, duty or liability of Grantor arising under any lease
or other agreement relating to the Mortgaged Property or arising under any
Permitted Encumbrance or otherwise arising. Grantor hereby assents to,
ratifies and confirms any and all actions of Agent with respect to the
Mortgaged Property taken under this Section.
(g) RECEIVER. Agent shall as a matter of right be entitled to the
appointment of a receiver or receivers for all or any part of the Mortgaged
Property, whether such receivership be incident to a proposed sale (or sales)
of such property or otherwise, and without regard to the value of the Mortgaged
Property or the solvency of any person or persons liable for the payment of the
indebtedness secured hereby, and Grantor does hereby irrevocably consent to the
appointment of such receiver or receivers, waives any and all defenses to such
appointment, agrees not to oppose any application therefor by Agent, and agrees
that such appointment shall in no manner impair, prejudice or otherwise affect
the rights of Agent to application of Rents as provided in this Mortgage.
Nothing herein is to be construed to deprive Agent of any other right, remedy
or privilege it may have under the law to have a receiver appointed. Any
reasonable amount of money advanced by Agent in connection with any such
receivership shall be a demand obligation (which obligation Grantor hereby
promises to pay) owing by Grantor to Agent pursuant to this Mortgage.
(h) TERMINATION OF COMMITMENT TO LEND. Agent and each other
Holder may terminate any commitment or obligation to lend or disburse funds
under any Loan Document.
19 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
20
(i) OTHER RIGHTS AND REMEDIES. Agent may exercise any and all
other rights and remedies which Agent may have under the Loan Documents, or at
law or in equity or otherwise.
Section 5.2. EFFECTIVE AS MORTGAGE. This instrument shall be
effective as a mortgage as well as a deed of trust and upon the occurrence of a
default may be foreclosed as to any of the Mortgaged Property in any manner
permitted by applicable law, and any foreclosure suit may be brought by Trustee
or by Agent; and to the extent, if any, required to cause this instrument to be
so effective as a mortgage as well as a deed of trust, Grantor hereby mortgages
the Mortgaged Property to Agent, as agent for itself and the other Banks. In
the event a foreclosure hereunder shall be commenced by Trustee, or his
substitute or successor, Agent may at any time before the sale of the Mortgaged
Property direct Trustee to abandon the sale, and may then institute suit for
the collection of the Notes and/or any other secured indebtedness, and for the
foreclosure of this Mortgage. It is agreed that if Agent should institute a
suit for the collection of the Notes or any other secured indebtedness and for
the foreclosure of this Mortgage, Agent may at any time before the entry of a
final judgment in said suit dismiss the same, and require Trustee, his
substitute or successor to sell the Mortgaged Property in accordance with the
provisions of this Mortgage.
Section 5.3. PROCEEDS OF FORECLOSURE. The proceeds of any sale held
by Trustee or Agent or any receiver or public officer in foreclosure of the
liens and security interests evidenced hereby shall be applied: FIRST, to the
payment of all necessary costs and expenses incident to such foreclosure sale,
including but not limited to all reasonable attorneys' fees and legal expenses,
all court costs and charges of every character, and to the payment of the other
secured indebtedness, pro rata, including specifically without limitation the
principal, accrued interest and attorneys' fees due and unpaid on the Notes and
the amounts due and unpaid and owed to Agent and each other Holder under this
Mortgage, the order and manner of application to the items in this clause to be
in Agent's sole discretion; and SECOND, the remainder, if any there shall be,
shall be paid to Grantor, or to Grantor's heirs, devisees, representatives,
successors or assigns, or such other persons (including the holder or
beneficiary of any inferior lien) as may be entitled thereto by law; provided,
however, that if Agent is uncertain which person or persons are so entitled,
Agent may interplead such remainder in any court of competent jurisdiction and
the amount of any reasonable attorneys' fees, court costs and expenses incurred
in such action shall be a part of the secured indebtedness and shall be
reimbursable (without limitation) from such remainder.
Section 5.4. AGENT AS PURCHASER. Agent shall have the right to
become the purchaser as agent for, and for the benefit of the Banks, at any
sale held by Trustee or substitute or successor or by any receiver or public
officer or at any public sale, and Agent shall have the right to credit upon
the amount of Agent's successful bid, to the extent necessary to satisfy such
bid, all or any part of the secured indebtedness in such manner and order as
Agent may elect.
Section 5.5. FORECLOSURE AS TO MATURED DEBT. Upon the occurrence
of a default, Agent shall have the right to proceed with foreclosure judicial
or non-judicial) of the liens and security interests hereunder without
declaring the entire secured indebtedness due, and in such event any such
foreclosure sale may be made subject to the unmatured part of the secured
indebtedness; and any such sale shall not in any manner affect the unmatured
part of the secured indebtedness, but as to such unmatured part this Mortgage
shall remain in full force and effect just as though no sale had been made.
The proceeds of such sale shall be applied as provided in SECTION 5.3 hereof
except that the amount paid under clause FIRST thereof shall be only the
matured portion of the secured indebtedness and any proceeds of such sale in
excess of those provided for in clause FIRST (modified as provided above) shall
be applied to the prepayment (without penalty) of any other secured
indebtedness in such manner and order and to such extent as Agent deems
advisable, and the
20 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
21
remainder, if any, shall be applied as provided in clause second of SECTION 5.3
hereof. Several sales may be made hereunder without exhausting the right of
sale for any unmatured part of the secured indebtedness.
Section 5.6. REMEDIES CUMULATIVE. All rights and remedies
provided for herein and in any other Loan Document are cumulative of each other
and of any and all other rights and remedies existing at law or in equity, and
Trustee and Agent shall, in addition to the rights and remedies provided herein
or in any other Loan Document, be entitled to avail themselves of all such
other rights and remedies as may now or hereafter exist at law or in equity for
the collection of the secured indebtedness and the enforcement of the covenants
herein and the foreclosure of the liens and security interests evidenced
hereby, and the resort to any right or remedy provided for hereunder or under
any such other Loan Document or provided for by law or in equity shall not
prevent the concurrent or subsequent employment of any other appropriate right
or rights or remedy or remedies.
Section 5.7. AGENT'S DISCRETION AS TO SECURITY. Agent may resort
to any security given by this Mortgage or to any other security now existing,
or hereafter given to secure the payment of the secured indebtedness, in whole
or in part, and in such portions and in such order as may seem best to Agent in
its sole and uncontrolled discretion, and any such action shall not in anywise
be considered as a waiver of any of the rights, benefits, liens or security
interests evidenced by this Mortgage.
Section 5.8. GRANTOR'S WAIVER OF CERTAIN RIGHTS. To the full
extent Grantor may do so, Grantor agrees that Grantor will not at any time
insist upon, plead, claim or take the benefit or advantage of any law now or
hereafter in force providing for any appraisement, valuation, stay, extension
or redemption, and Grantor, for Grantor, Grantor's heirs, devisees,
representatives, successors and assigns, and for any and all persons ever
claiming any interest in the Mortgaged Property, to the extent permitted by
applicable law, hereby waives and releases all rights of redemption, valuation,
appraisement, stay of execution, notice of intention to mature or declare due
the whole of the secured indebtedness, notice of election to mature or declare
due the whole of the secured indebtedness and all rights to a marshaling of
assets of Grantor, including the Mortgaged Property, or to a sale in inverse
order of alienation in the event of foreclosure of the liens and/or security
interests hereby created. Grantor shall not have or assert any right under any
statute or rule of law pertaining to the marshaling of assets, sale in inverse
order of alienation, the exemption of homestead, the administration of estates
of decedents, or other matters whatever to defeat, reduce or affect the right
of Agent under the terms of this Mortgage to a sale of the Mortgaged Property
for the collection of the secured indebtedness without any prior or different
resort for collection, or the right of Agent under the terms of this Mortgage
to the payment of the secured indebtedness out of the proceeds of sale of the
Mortgaged Property in preference to every other claimant whatever. Grantor
waives any right or remedy which Grantor may have or be able to assert pursuant
to Chapter 34 of the Texas Business and Commerce Code, or any other provision
of Texas law, pertaining to the rights and remedies of sureties. If any law
referred to in this Section and now in force, of which Grantor or Grantor's
heirs, devisees, representatives, successors or assigns or any other persons
claiming any interest in the Mortgaged Property might take advantage despite
this Section, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to preclude the application of this Section.
Section 5.9. DELIVERY OF POSSESSION AFTER FORECLOSURE. In the
event there is a foreclosure sale hereunder and at the time of such sale,
Grantor or Grantor's heirs, devisees, representatives, successors or assigns
are occupying or using the Mortgaged Property, or any part thereof, each and
all shall immediately become the tenant of the purchaser at such sale, which
tenancy shall be a tenancy from day to day, terminable at the will of either
landlord or tenant, at a reasonable rental per day based upon the value of the
property occupied, such rental to be due daily to the purchaser; and to the
extent permitted by applicable law, the
21 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
22
purchaser at such sale shall, notwithstanding any language herein apparently to
the contrary, have the sole option to demand immediate possession following the
sale or to permit the occupants to remain as tenants at will. In the event the
tenant fails to surrender possession of said property upon demand, the
purchaser shall be entitled to institute and maintain a summary action for
possession of the property (such as an action for forcible detainer) in any
court having jurisdiction.
ARTICLE 6
MISCELLANEOUS
Section 6.1. SCOPE OF MORTGAGE. This Mortgage is a deed of trust
and mortgage of both real and personal property, a security agreement, a
financing statement and a collateral assignment, and also covers proceeds and
fixtures.
Section 6.2. EFFECTIVE AS A FINANCING STATEMENT. This Mortgage
shall be effective as a financing statement filed as a fixture filing with
respect to all fixtures included within the Mortgaged Property and is to be
filed for record in the real estate records of each county where any part of
the Mortgaged Property (including said fixtures) is situated. This Mortgage
shall also be effective as a financing statement covering minerals or the like
(including oil and gas) and accounts subject to Subsection (e) of Section 9.103
of the Texas Business and Commerce Code, as amended, and similar provisions (if
any) of the Uniform Commercial Code as enacted in any other state where the
Mortgaged Property is situated which will be financed at the wellhead or
minehead of the xxxxx or mines located on the Mortgaged Property and is to be
filed for record in the real estate records of each county where any part of
the Mortgaged Property is situated. This Mortgage shall also be effective as a
financing statement covering any other Mortgaged Property and may be filed in
any other appropriate filing or recording office. The mailing address of
Grantor is the address of Grantor set forth at the end of this Mortgage and the
address of Agent from which information concerning the security interests
hereunder may be obtained is the address of Agent set forth at the end of this
Mortgage. A carbon photographic or other reproduction of this Mortgage or of
any financing statement relating to this Mortgage shall be sufficient as a
financing statement for any of the purposes referred to in this Section.
Section 6.3. NOTICE TO ACCOUNT DEBTORS. In addition to the rights
granted elsewhere in this Mortgage, Agent may at any time notify the account
debtors or obligors of any accounts, chattel paper, negotiable instruments or
other evidences of indebtedness included in the Collateral to pay Agent
directly.
Section 6.4. WAIVER BY AGENT. Agent, at the direction of Required
Banks (as defined in the Credit Agreement), may at any time and from time to
time by a specific writing intended for the purpose: (a) waive compliance by
Grantor with any covenant herein made by Grantor to the extent and in the
manner specified in such writing; (b) consent to Grantor's doing any act which
hereunder Grantor is prohibited from doing, or to Grantor's failing to do any
act which hereunder Grantor is required to do, to the extent and in the manner
specified in such writing; (c) release any part of the Mortgaged Property or
any interest therein from the lien and security interest of this Mortgage,
without the joinder of Trustee; or (d) release any party liable, either
directly or indirectly, for the secured indebtedness or for any covenant herein
or in any other Loan Document, without impairing or releasing the liability of
any other party. No such act shall in any way affect the rights or powers of
Agent or Trustee hereunder except to the extent specifically agreed to by Agent
in such writing.
22 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
23
Section 6.5. NO IMPAIRMENT OF SECURITY. The lien, security
interest and other security rights of Agent and each other Holder hereunder or
under any other Loan Document shall not be impaired by any indulgence,
moratorium or release granted by Agent including, but not limited to, any
renewal, extension or modification which Holders may grant with respect to any
secured indebtedness, or any surrender, compromise, release, renewal,
extension, exchange or substitution which Agent may grant in respect of the
Mortgaged Property, or any part thereof or any interest therein, or any release
or indulgence granted to any endorser, guarantor or surety of any secured
indebtedness. The taking of additional security by Agent or any other Holder
shall not release or impair the lien, security interest or other security
rights of Agent and each other Holder hereunder or affect the liability of
Grantor or of any endorser, guarantor or surety, or improve the right of any
junior lienholder in the Mortgaged Property (without implying hereby Agent's
consent to any junior lien).
Section 6.6. ACTS NOT CONSTITUTING WAIVER BY AGENT. Agent, on
behalf of Required Banks (as defined in the Credit Agreement), may waive any
default without waiving any other prior or subsequent default. Agent may
remedy any default without waiving the default remedied. Neither failure by
Agent to exercise, nor delay by Agent in exercising, nor discontinuance of the
exercise of any right, power or remedy (including but not limited to the right
to accelerate the maturity of the secured indebtedness or any part thereof)
upon or after any default shall be construed as a waiver of such default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Agent of any right, power or remedy
hereunder shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by Grantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Agent and
then such waiver or consent shall be effective only in the specific instance,
for the purpose for which given and to the extent therein specified. No notice
to nor demand on Grantor in any case shall of itself entitle Grantor to any
other or further notice or demand in similar or other circumstances.
Remittances in payment of any part of the secured indebtedness other than in
the required amount in immediately available U.S. funds shall not, regardless
of any receipt or credit issued therefor, constitute payment until the required
amount is actually received by Agent in immediately available U.S. funds and
shall be made and accepted subject to the condition that any check or draft may
be handled for collection in accordance with the practice of the collecting
bank or banks. Acceptance by Agent of any payment in an amount less than the
amount then due on any secured indebtedness shall be deemed an acceptance on
account only and shall not in any way excuse the existence of a default
hereunder.
Section 6.7. GRANTOR'S SUCCESSORS. If the ownership of the
Mortgaged Property or any part thereof becomes vested in a person other than
Grantor, Agent may, without notice to Grantor, deal with such successor or
successors in interest with reference to this Mortgage and to the indebtedness
secured hereby in the same manner as with Grantor, without in any way vitiating
or discharging Grantor's liability hereunder or for the payment of the
indebtedness or performance of the obligations secured hereby. No transfer of
the Mortgaged Property, no forbearance on the part of Agent, and no extension
of the time for the payment of the indebtedness secured hereby given by Agent,
upon direction of Banks, shall operate to release, discharge, modify, change or
affect, in whole or in part, the liability of Grantor hereunder for the payment
of the indebtedness or performance of the obligations secured hereby or the
liability of any other person hereunder for the payment of the indebtedness
secured hereby. Grantor agrees that it shall be bound by any modification of
this Mortgage or any of the other Loan Documents made by Agent and any
subsequent owner of the Mortgaged Property, with or without notice to such
Grantor, and no such modifications shall impair the obligations of such Grantor
under this Mortgage or any other Loan Document. Nothing in this Section or
23 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
24
elsewhere in this Mortgage shall be construed to imply Agent's consent to any
transfer of the Mortgaged Property.
Section 6.8. PLACE OF PAYMENT; FORUM. All secured indebtedness
which may be owing hereunder at any time by Grantor shall be payable at the
place designated in the Notes or the other Loan Documents (or if no such
designation is made, at the address of Agent indicated at the end of this
Mortgage). Grantor hereby irrevocably submits generally and unconditionally
for itself and in respect of its property to the non-exclusive jurisdiction of
any Texas state court, or any United States federal court, sitting in the
county in which the secured indebtedness is payable, and to the non- exclusive
jurisdiction of any state or United States federal court sitting in the state
in which any of the Mortgaged Property is located, over any suit, action or
proceeding arising out of or relating to this Mortgage or the secured
indebtedness. Grantor hereby agrees and consents that, in addition to any
methods of service of process provided for under applicable law, all service of
process in any such suit, action or proceeding in any Texas state court, or any
United States federal court, sitting in the county in which the secured
indebtedness is payable may be made by certified or registered mail, return
receipt requested, directed to Grantor at its address stated in this Mortgage,
or at a subsequent address of Grantor of which Agent received actual notice
from Grantor in accordance with this Mortgage, and service so made shall be
complete five (5) days after the same shall have been so mailed.
Section 6.9. SUBROGATION TO EXISTING LIENS; VENDOR'S LIEN. To the
extent that proceeds of the Notes are used to pay indebtedness secured by any
outstanding, lien, security interest, charge or prior encumbrance against the
Mortgaged Property, such proceeds have been advanced by Holders at Grantor's
request, and Holders shall be subrogated to any and all rights, security
interests and liens owned by any owner or holder of such outstanding liens,
security interests, charges or encumbrances, however remote, irrespective of
whether said liens, security interests, charges or encumbrances are released,
and all of the same are recorded as valid and subsisting and are renewed and
continued and merged herein to secure the secured indebtedness, but the terms
and provisions of this Mortgage shall govern and control the manner and terms
of enforcement of the liens, security interests, charges and encumbrances to
which Holders are subrogated hereunder. It is expressly understood that in
consideration of the payment of such indebtedness by Holders, Grantor hereby
waives and releases all demands and causes of action for offsets and payments
in connection with the said indebtedness. If all or any portion of the
proceeds of the loan evidenced by the Notes or of any other secured
indebtedness has been advanced for the purpose of paying the purchase price for
all or a part of the Mortgaged Property, no vendor's lien is waived; and Agent
and each other Holder shall have, and is hereby granted, a vendor's lien on the
Mortgaged Property as cumulative additional security for the secured
indebtedness. Agent may foreclose under this Mortgage or under the vendor's
lien without waiving the other or may foreclose under both.
Section 6.10. APPLICATION OF PAYMENTS TO CERTAIN INDEBTEDNESS. If
any part of the secured indebtedness cannot be lawfully secured by this
Mortgage or if any part of the Mortgaged Property cannot be lawfully subject to
the lien and security interest hereof to the full extent of such indebtedness,
then an payments made shall be applied on said indebtedness first in discharge
of that portion thereof which is not secured by this Mortgage.
Section 6.11. COMPLIANCE WITH USURY LAWS. It is the intent of
Grantor, Agent and each other Holder and all other parties to the Loan
Documents to conform to and contract in strict compliance with applicable usury
law from time to time in effect. All agreements between each Holder and
Grantor (or any other party liable with respect to any indebtedness under the
Loan Documents) are hereby limited by the provisions of this Section which
shall override and control all such agreements, whether now existing or
24 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
25
hereafter arising. In no way, nor in any event or contingency (including but
not limited to prepayment, default, demand for payment, or acceleration of the
maturity of any obligation), shall the interest taken, reserved, contracted
for, charged, chargeable, or received under this Mortgage, the Notes or any
other Loan Document or otherwise, exceed the maximum non-usurious amount
permitted by applicable law (the "MAXIMUM AMOUNT"). If, from any possible
construction of any document, interest would otherwise be payable in excess of
the Maximum Amount, any such construction shall be subject to the provisions of
this Section and such document shall ipso facto be automatically reformed and
the interest payable shall be automatically reduced to the Maximum Amount,
without the necessity of execution of any amendment or new document. If any
Holder shall ever receive anything of value which is characterized as interest
under applicable law and which would apart from this provision be in excess of
the Maximum Amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction of the
principal amount owing on the secured indebtedness in the inverse order of its
maturity and not to the payment of interest, or refunded to Grantor or the
other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal. The right to accelerate maturity of
the Notes or any other secured indebtedness does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Holders do not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to be paid
to each Holder shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full stated term (including any
renewal or extension) of such indebtedness so that the amount of interest on
account of such indebtedness does not exceed the Maximum Amount. As used in
this Section, the term "APPLICABLE LAW" shall mean the laws of the State of
Texas or the federal laws of the United States applicable to this transaction,
whichever laws allow the greater interest, as such laws now exist or may be
changed or amended or come into effect in the future.
Section 6.12. SUBSTITUTE TRUSTEE. The Trustee may resign by an
instrument in writing addressed to Agent, or Trustee may be removed at any time
with or without cause by an instrument in writing executed by Agent. In case
of the death, resignation, removal, or disqualification of Trustee, or if for
any reason Agent shall deem it desirable to appoint a substitute or successor
trustee to act instead of the herein named trustee or any substitute or
successor trustee, then Agent shall have the right and is hereby authorized and
empowered to appoint a successor trustee, or a substitute trustee, without
other formality than appointment and designation in writing, executed by Agent
and the authority hereby conferred shall extend to the appointment of other
successor and substitute trustees successively until the indebtedness secured
hereby has been paid in full, or until the Mortgaged Property is fully and
finally sold hereunder. If Agent is a corporation or association and such
appointment is executed on its behalf by officers of such corporation or
association, such appointment shall be conclusively presumed to be executed
with authority and shall be valid and sufficient without proof of any action by
the board of directors or any superior officer of the corporation or
association. Upon the making of any such appointment and designation, all of
the estate and title of Trustee in the Mortgaged Property shall vest in the
named successor or substitute Trustee and he or she shall thereupon succeed to,
and shall hold, possess and execute, all the rights, powers, privileges,
immunities and duties herein conferred upon Trustee. All references herein to
"Trustee" shall be deemed to refer to Trustee (including any successor or
substitute appointed and designated as herein provided) from time to time
acting hereunder.
Section 6.13. NO LIABILITY OF TRUSTEE. The Trustee shall not be
liable for any error of judgment or act done by Trustee in good faith, or be
otherwise responsible or accountable under any circumstances whatsoever
(including Trustee's negligence), except for Trustee's gross negligence or
willful misconduct. The Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by him hereunder, believed by him in good faith to be
genuine. All
25 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
26
moneys received by Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated in any manner from any other moneys (except to the extent required
by law), and Trustee shall be under no liability for interest on any moneys
received by him hereunder. Grantor hereby ratifies and confirms any and all
acts which the herein named Trustee or his successor or successors, substitute
or substitutes, in this trust, shall do lawfully by virtue hereof. Grantor
will reimburse Trustee for, and save him harmless against, any and all
liability not due to gross negligence or willful misconduct and expenses which
may be incurred by him in the performance of his duties. The foregoing
indemnity shall not terminate upon discharge of the secured indebtedness or
foreclosure, or release or other termination, of this Mortgage.
Section 6.14. RELEASE OF MORTGAGE. If all of the secured
indebtedness be paid as the same becomes due and payable and all of the
covenants, warranties, undertakings and agreements made in this Mortgage are
kept and performed, and all obligations, if any, of Agent and each other Holder
for further advances have been terminated, then, and in that event only, all
rights under this Mortgage shall terminate (except to the extent expressly
provided herein with respect to indemnifications, representations and
warranties and other rights which are to continue following the release hereof)
and the Mortgaged Property shall become wholly clear of the liens, security
interests, conveyances and assignments evidenced hereby, and such liens and
security interests shall be released by Agent in due form at Grantor's cost.
Without limitation, all provisions herein for indemnity of Agent and each other
Holder or Trustee shall survive discharge of the secured indebtedness and any
foreclosure, release or termination of this Mortgage.
Section 6.15. NOTICES. All notices, requests, consents, demands
and other communications required or which any party desires to give hereunder
or under any other Loan Document shall be in writing and, unless otherwise
specifically provided in such other Loan Document, shall be deemed sufficiently
given or furnished if delivered by personal delivery, by courier, or by
registered or certified United States mail, postage prepaid, addressed to the
party to whom directed at the addresses specified at the end of this Mortgage
(unless changed by similar notice in writing given by the particular party
whose address is to be changed) or by telegram, telex, or facsimile. Any such
notice or communication shall be deemed to have been given either at the time
of personal delivery or, in the case of courier or mail, as of the date of
first attempted delivery at the address and in the manner provided herein, or,
in the case of telegram, telex or facsimile, upon receipt; provided that,
service of a notice required by Texas Property Code Section 51.002, as amended,
shall be considered complete when the requirements of that statute are met.
Notwithstanding the forgoing, no notice of change of address shall be effective
except upon receipt. This Section shall not be construed in any way to affect
or impair any waiver of notice or demand provided in any Loan Document or to
require giving of notice or demand to or upon any person in any situation or
for any reason.
Section 6.16. INVALIDITY OF CERTAIN PROVISIONS. A determination
that any provision of this Mortgage is unenforceable or invalid shall not
affect the enforceability or validity of any other provision and the
determination that the application of any provision of this Mortgage to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons
or circumstances.
Section 6.17. GENDER; TITLES; CONSTRUCTION. Within this Mortgage,
words of any gender shall be held and construed to include any other gender,
and words in the singular number shall be held and construed to include the
plural, unless the context otherwise requires. Titles appearing at the
beginning of any subdivisions hereof are for convenience only, do not
constitute any part of such subdivisions, and shall be disregarded in
construing the language contained in such subdivisions. The use of the words
"herein," "hereof," "hereunder" and other similar compounds of the word "here"
shall refer to this entire Mortgage and
26 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
27
not to any particular Article, Section, paragraph or provision. The term
"person" and words importing persons as used in this Mortgage shall include
firms, associations, partnerships (including limited partnerships), joint
ventures, trusts, corporations and other legal entities, including public or
governmental bodies, agencies or instrumentalities, as well as natural persons.
Section 6.18. REPORTING COMPLIANCE. Grantor agrees to comply with
any and all reporting requirements applicable to the transaction evidenced by
the Notes and secured by this Mortgage which are set forth in any law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority, including but not limited to The International Investment Survey Act
of 1976, The Agricultural Foreign Investment Disclosure Act of 1978, The
Foreign Investment in Real Property Tax Act of 1980 and the Tax Reform Act of
1984 and further agrees upon written request of Agent to furnish Agent with
evidence of such compliance.
Section 6.19. REGARDING AGENT. Except where otherwise expressly
provided herein, (a) in any instance hereunder where the approval, consent or
the exercise of judgment of Agent is required or requested, no approval or
consent of Agent shall be deemed to have been given except by a specific
writing intended for the purpose and executed by an authorized representative
of Agent, and (b) any payments made to Agent hereunder in respect of the
Mortgaged Property shall be made to Agent for the ratable benefit of all of the
Banks based upon the outstanding principal amount of the secured indebtedness
(except for reimbursements of Agent for sums expended by it hereunder, which
sums shall be retained by Agent for its own account).
Section 6.20. GRANTOR. Unless the context clearly indicates
otherwise, as used in this Mortgage, "GRANTOR" means the grantors named in
SECTION 1.1 hereof or any of them. The obligations of Grantor hereunder shall
be joint and several. If any Grantor, or any signatory who signs on behalf of
any Grantor, is a corporation, partnership or other legal entity, Grantor and
any such signatory, and the person or persons signing for it, represent and
warrant to Agent that this instrument is executed, acknowledged and delivered
by Grantor's duly authorized representatives. If Grantor is an individual, no
power of attorney granted by Grantor herein shall terminate on Grantor's
disability.
Section 6.21. EXECUTION; RECORDING. This Mortgage has been
executed in several counterparts, all of which are identical, and all of which
counterparts together shall constitute one and the same instrument. The date
or dates reflected in the acknowledgments hereto indicate the date or dates of
actual execution of this Mortgage, but such execution is as of the date shown
on the first page hereof, and for purposes of identification and reference the
date of this Mortgage shall be deemed to be the date reflected on the first
page hereof. Grantor will cause this Mortgage and all amendments and
supplements thereto and substitutions therefor and all financing statements and
continuation statements relating thereto to be recorded, filed, re-recorded and
re-filed in such manner and in such places as Trustee or Agent shall reasonably
request and will pay all such recording, filing, re-recording and re-filing
taxes, fees and other charges.
Section 6.22. SUCCESSORS AND ASSIGNS. The terms, provisions,
covenants and conditions hereof shall be binding upon Grantor, and the heirs,
devisees, representatives, successors and assigns of Grantor, and shall inure
to the benefit of Trustee, Agent and each other Holder and shall constitute
covenants running with the Land. All references in this Mortgage to Grantor
shall be deemed to include all such heirs, devisees, representatives,
successors and assigns of Grantor.
Section 6.23. MODIFICATION OR TERMINATION. The Loan Documents may
only be modified or terminated by a written instrument or instruments intended
for that purpose and executed by the party against
28 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
28
which enforcement of the modification or termination is asserted. Any alleged
modification or termination which is not so documented shall not be effective
as to any party.
Section 6.24. NO PARTNERSHIP, ETC. The relationship between
Holders and Grantor is solely that of lenders and borrower. Neither Agent nor
any other Holder has any fiduciary or other special relationship with Grantor.
Nothing contained in the Loan Documents is intended to create any partnership,
joint venture, association or special relationship between Grantor and any
Holder or in any way make Agent or any other Holder a co-principal with Grantor
with reference to the Mortgaged Property. All agreed contractual duties
between or among Agent, each other Holder, Grantor and Trustee are set forth
herein and in the other Loan Documents and any additional implied covenants or
duties are hereby disclaimed. Any inferences to the contrary of any of the
foregoing are hereby expressly negated.
Section 6.25. APPLICABLE LAW. This Mortgage, and its validity,
enforcement and interpretation, shall be governed by Texas law (without regard
to any conflict of laws principles) and applicable United States federal law.
Section 6.26. ENTIRE AGREEMENT. The Loan Documents constitute the
entire understanding and agreement between Grantor, Agent and each other Holder
with respect to the transactions arising in connection with the indebtedness
secured hereby and supersede all prior written or oral understandings and
agreements between Grantor, Agent and each other Holder with respect to the
matters addressed in the Loan Documents. Grantor hereby acknowledges that,
except as incorporated in writing in the Loan Documents, there are not, and
were not, and no persons are or were authorized by Agent or any other Holder to
make, any representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the matters addressed in the Loan
Documents. To the extent any of the provisions contained herein conflict with
the terms set forth in the Credit Agreement, the provisions of the Credit
Agreement shall control.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this instrument is executed by Grantor as to the
date first written on page 1 hereof.
The address and federal tax identification number of Grantor are:
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx, III
Federal Tax No.: 00-0000000
GRANTOR:
-------
PACKAGED ICE, INC., a Texas corporation
By:___________________________________
Xxxxx X. Xxxxxx, Chief Executive Officer
28 PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
29
The address of Agent is
The Frost National Bank, as Agent
X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Senior Vice President
THE STATE OF TEXAS )
)
COUNTY OF BEXAR )
This instrument was acknowledged before me on ____________, 1997, by
XXXXX X. XXXXXX, Chief Executive Officer of PACKAGED ICE, INC., a Texas
corporation, on behalf of such corporation.
____________________________________
Notary Public, Xxxxx xx Xxxxx
00 XXX XXXXX LEASEHOLD DEED OF TRUST (DALLAS)
30
EXHIBIT A
TO
DEED OF TRUST
PROPERTY
Grantor's leasehold estate in the following property located in Dallas County,
Texas, created under that certain Lease Agreement dated December 6, 1995, by
and between Security Associates 3601, Ltd., as landlord, and Grantor, as
tenant, covering the premises located at 0000 Xxxxxxxx Xx., Xxxxxx, Xxxxxx
Xxxxxx, Xxxxx, said property being described on EXHIBIT A-1 attached hereto and
incorporated herein for all purposes.
PII TEXAS LEASEHOLD DEED OF TRUST (DALLAS)
